On November 7, six consumer groups sent a letter to Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell urging them to bring S.1145 (see IP Update, Vol. 10, No. 9) to the floor for a vote. However, there was no Senate action on the bill in the run up to the Thanksgiving recess. At this point, no action seems likely until at least early 2008, when Congress returns from its holiday recess. Based on the recent swirl of controversy, it would not be surprising if the Senate bill experienced significant amendment before any vote is taken.
In an effort to bolster support for the legislation, the consumer groups, including the Consumer Federation of America, Consumers Union, the Electronic Frontier Foundation, Knowledge Ecology International, Public Knowledge and the United States Public Interest Research Group sent their letter of support, telling lawmakers that S. 1145 "takes a significant first step towards improving patent quality and reducing costs and uncertainties of litigation." The patent reform initiative also has the support of the Business Software Alliance and from the Coalition for Patent Fairness.
The consumer groups focused favorably on four provisions: permitting third parties to submit relevant documents to examiners before the issuance of a patent; introducing a new administrative process allowing third parties to challenge issued patents within a year of the patent’s grant or when they can show a risk of substantial harm; requiring courts to apportion damages to reflect the actual value of the damage to the patent owner, rather than on the entire value of the infringing product; and that clarify willful infringement and hold defendants free from willful infringement liability based on mere knowledge of the existence of a patent.
The consumer groups’ support is likely a reaction to an October 23 letter to the Senate leaders, sponsored by Innovation Alliance and endorsed by over 400 organizations and businesses, arguing that the Senate bill "contains provisions that will create uncertainty and weaken the validity of issued patents." This letter faulted various parts of the Senate bill, including the provision that provide for apportionment of damages, that provide an "indefinite" post-grant opposition provision, that would impose "excessive" venue restrictions, that would impose "burdensome" mandatory search requirements and that would establish "unworkable" interlocutory appeals.
The legislation in its current form has also been attacked by the Coalition for 21st Century Patent Reform, whose members include the American Intellectual Property Law Association.
The patent reform initiative has been stalled since September 7, 2007, when the House counterpart bill (H.R. 1908) was passed by the House of Representatives (see IP Update, Vol. 10, No. 9). The Senate Judiciary Committee approved S. 1145 on July 19, 2007.
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